Last Updated:January 23, 2023

1. Introduction

These Terms of Service (these “Terms”) govern your access to and use of certain products, services and properties made available by Tonic Labs, Inc. (“Tonic,” “we,” “us” or “our”). (As used herein, the term “you” (including any variant) refers to each individual who enters into these Terms on such individual’s own behalf or any entity on behalf of which an individual enters into these Terms.) Our products, services and properties include, without limitation, the creation, purchase, sale, exchange, or modification of certain digital assets and tangible merchandise; our online and/or mobile services, including the website through which these Terms are made available (the “Site”), any applications for mobile and/or web that we make available (each and collectively, the “App”)  and any software (including any Token (as defined below) made available by us that links to these Terms) provided on or in connection with those services (collectively with the Site and the App, the “Service”). Certain features of the Service may be subject to additional guidelines, terms, or rules (“Supplemental Terms”), which will be displayed in connection with such features. These Terms and all such Supplemental Terms, which are incorporated by reference, are collectively referred to as the “Agreement”. If these Terms are inconsistent with any Supplemental Terms, the Supplemental Terms shall control solely with respect to such services. 

TONIC OFFERS CERTAIN DIGITAL ASSETS AND DIGITAL AND NON-DIGITAL PRODUCTS, SERVICES AND/OR BENEFITS. WE ARE NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. YOU AGREE THAT TONIC SHALL NOT BE A PARTY TO OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR, ARISING OUT OF, RELATING TO, ASSOCIATED WITH OR RESULTING FROM ANY DISPUTES IN RESPECT OF THE OFFERING, PURCHASE, SALE, USE, MISUSE, PROVISION OR FAILURE TO PROVIDE ANY TOKEN, EXCEPT WHERE TONIC IS THE SELLER IN THE APPLICABLE TRANSACTION. 

YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ITEMS (DEFINED BELOW) THAT YOU PURCHASE THROUGH THE SERVICE. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, TONIC MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ITEMS OFFERED FOR SALE ON OR THROUGH THE SERVICE. 

PLEASE READ SECTION 20 OF THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. 

PLEASE BE AWARE THAT SECTION 7 OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US.

THIS AGREEMENT IS IMPORTANT AND AFFECTS YOUR LEGAL RIGHTS, SO PLEASE READ CAREFULLY. BY CLICKING ON ANY “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, PURCHASING OR OFFERING TO PURCHASE ANY ITEMS THROUGH THE SERVICE, AND/OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN. If you do not agree to this Agreement, you may not access or use the Service or purchase any Items.

Please refer to our Privacy Policy for information about how we collect, use and share personal information about you. By submitting data through the Service, you expressly consent to the collection, use and disclosure of your personal data in accordance with the Privacy Policy.

Tonic reserves the right to change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide notice of such changes, such as by sending an email notification, providing notice through the Service or updating the “Last Updated” date at the beginning of this Agreement. By continuing to access or use the Service at any point after such update, you confirm your acceptance of the revised Agreement and all of the terms incorporated therein by reference. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the Service. If you do not agree to the revised Agreement, you may not access or use the Service.

2. Our Service
1. The Service is a software application made available by Tonic to, among other things, enable users of the Service (“Users”) to mint and/or purchase unique non-fungible tokens (“NFT(s)”) implemented on the Ethereum blockchain (the “Blockchain Platform”) or other products, services and/or benefits to be furnished in connection with such NFTs (such benefits, “Token Access Services” and, collectively with the NFTs, “Tokens”) and to purchase any Merchandise (as defined below). 
2. In order to access certain portions of the Service, including without limitation to access any Token Access Service, you must create an account on the Service (an “Account”) and link an electronic wallet that allows you to purchase, store, and engage in transactions using cryptocurrency and NFTs (each, a “Digital Wallet”) on supported bridge extensions or through other Payment Processors (as defined below) then-currently supported by us. 
3. A User may be able to access or receive certain Token Access Services, as listed at point of sale for such Token or as otherwise may be made available by Tonic. In order to redeem any Token Access Service, you must (i) connect to the Service the Digital Wallet that holds the respective Token and (ii) log into your Account. Certain Token Access Services may be time-limited and Tonic does not guarantee that any Token Access Service will continue to be made available to the then-current owner of a Token. Where Token Access Services are offered or made available by a third party, Tonic does not and cannot guarantee any such Token Access Services.
4. ALL TRANSACTIONS INITIATED THROUGH YOUR DIGITAL WALLET ARE EFFECTED BY THIRD-PARTY DIGITAL WALLET EXTENSIONS. BY USING OUR SERVICE, YOU AGREE THAT SUCH TRANSACTIONS ARE GOVERNED BY THE TERMS OF SERVICE AND PRIVACY POLICY FOR THE APPLICABLE EXTENSIONS. 
3. User Representations and Warranties 
1. You must be eighteen (18) years old to use the Service. By using the Service, you agree to (i) provide accurate, current, and complete information about yourself, (ii) maintain and promptly update from time to time as necessary such information, (iii) maintain the security of your Digital Wallet and accept all risks of unauthorized access to your Digital Wallet and to the information you provide to us, and (iv) immediately notify us if you discover or otherwise suspect any security breaches related to the Service. 
2. In order to use certain features of the Service, you must register for an Account and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. Tonic may suspend or terminate your Account in accordance with Section 21(o). You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Tonic of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Tonic cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. You agree that you will not: 
• buy, sell, rent, or lease access to the Service without our written permission;
• log in or try to log in to access the Service through unauthorized third party applications or clients.
4. Tonic may require you to provide additional information and documents from time to time, including without limitation at the request of any competent authority or in order to help Tonic comply with applicable law, regulation, or policy, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism. Tonic may also require you to provide additional information and documents in cases where it has reasons to believe that: (i) your Account, Digital Wallet or other access to the Service is being used for money laundering or for any other illegal activity; (ii) you have concealed or reported false identification information and other details; or (iii) transactions effected via your Account and/or Digital Wallet were effected in breach of this Agreement. In such cases, Tonic, in its sole discretion, may pause or cancel your transactions until such requested additional information and documents have been reviewed by Tonic and accepted as satisfying the requirements of applicable law, regulation, or policy. If you do not provide complete and accurate information and documents in response to such a request, Tonic may refuse to provide any Token, Content (as defined below), product, service and/or further access to the Service to you.
5. When you use the Service, you hereby represent and warrant, to and for the benefit of Tonic, its affiliates, and its and their respective representatives, as follows:
• Authority. You have all requisite capacity, power and authority to enter into, and perform your obligations under this Agreement. The execution, delivery and performance of, and the performance of your obligations under, this Agreement have been duly authorized by all necessary action on the part of you and, if you are an entity, such entity’s board of directors or comparable authority(ies), and no other proceedings on your part are necessary to authorize the execution, delivery or performance of your obligations under this Agreement by you. 
• Due Execution. This Agreement constitutes your legal, valid and binding obligation, enforceable against you in accordance with this Agreement.
• Accuracy of Information. All information provided by you to Tonic and/or its third-party designees is accurate and complete. None of: (i) you; (ii) any of your affiliates; (iii) any other person having a beneficial interest in you; or (iv) any person for whom you are acting as agent or nominee in connection with this Agreement is: (A) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or a person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure.
• Non-Contravention. This Agreement does not, and your acts and omissions hereunder will not: (i) if you are an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (ii) contravene, conflict with or violate any right of any third party or any applicable legal requirement to which you or any of the assets owned or used by you, is subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you or legal requirement applicable to you.
• Independent Investigation and Non-Reliance. You are sophisticated, experienced and knowledgeable regarding blockchain technology and digital assets. Additionally, you have conducted an independent investigation of the Service and the matters contemplated by this Agreement, have formed your own independent judgment regarding the benefits and risks of and necessary and desirable practices regarding the foregoing, and, in making the determination to use the Service, you have relied solely on the results of such investigation and such independent judgement. Without limiting the generality of the foregoing, you understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including the Tokens, are uncertain, and you have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties, including the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including the Tokens) may constitute securities under applicable legal requirements. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, Tonic, in determining to enter into this Agreement or use the Service.
• Litigation. There is no legal proceeding pending that relates to your activities relating to Service or other token- or digital asset- trading or blockchain technology related activities.
• Compliance. You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies or token trading activities. No investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice.
6. You must provide all equipment and software necessary to connect to the Service. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service. 
4. Purchasing a Token
1. By minting or purchasing a Token, you agree to comply with any terms, including licenses or payment rights that are embedded within or otherwise included with any Token that you purchase. Tonic does not guarantee that Tokens will be transferable to any other platform or compatible with any particular third-party services (including without limitation any Third-Party Services, as defined below). 
2. Tonic may set limits on or other terms regarding the sale of Tokens, including, without limitation, any fee payable in connection with any subsequent sale of a Token, whether or not such sale takes place on or through the Service (each such sale, a “Secondary Sale,” and such fee, a “Secondary Sale Fee”), and Tonic will display such terms at point of sale or otherwise within the Service (the “NFT Terms”).  
3. Tonic is not and shall not be a party to any transaction or dispute between any initial buyer of a Token and any subsequent owner of such Token, whether arising from any rights granted in that Token or otherwise, unless otherwise set forth in connection with such Token. 
4. All pricing and payment terms for Tokens are as indicated at point of sale, in the applicable NFT Terms, or otherwise on the Service.
5. When you purchase a Token, you agree that you have read, understand, and agree to be bound by the applicable NFT Terms and any other terms and conditions applicable to the Secondary Sale of that Token, including any Secondary Sale Fee (regardless of whether such Secondary Sale Fee is enforced or supported by the third-party platform or marketplace that facilitates a Secondary Sale). You further agree that, if you sell a Token, you will bind the purchaser of the Token to such NFT Terms. 
5. Purchasing Merchandise 
1. From time to time, the Service may enable Users to purchase one or more tangible prints of Artwork, design pieces, or other tangible goods incorporating Tonic’s Content or Artist IP (“Merchandise” and, collectively with Tokens, “Items”). Certain Merchandise may be made available, whether for free or for purchase, as or in connection with a Token Access Service. By using the Service to purchase any Merchandise, you represent that you have read, understand, and agree to be bound by the Agreement. 
2. The fees to be charged to you for Merchandise will be as stated on the Service at time of purchase. Unless otherwise indicated, the prices listed on the Service do not include Sales Tax (as defined below) or shipping and handling charges. You may have the opportunity to review product prices and the estimated Sales Tax (if applicable) and shipping and handling charges prior to submitting your order or completing the checkout process. 
3. Tonic reserves the right to change prices for Merchandise at any time.
4. Your receipt of an electronic or other form of order confirmation does not signify Tonic’s acceptance of your order for any Merchandise, nor does it constitute confirmation of our offer to sell. Tonic reserves the right at any time after receipt of your order to accept or decline your order for Merchandise any reason. Tonic further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any Merchandise. Your order will be deemed accepted by Tonic upon our delivery of the Merchandise that you have ordered. We may require additional verifications or information before accepting any order. All sales of Merchandise are subject to Tonic’s then-current return policies, as posted on the Service. All sales of Merchandise are made Ex Works (Incoterms 2010) Tonic’s designated point of shipment, and title and risk of loss to each shipment of such Merchandise shall pass to you when Tonic makes such shipment available to the carrier.
5. We cannot guarantee continuous or secure access to the Service and operation of the Service may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions in connection with your purchase or attempted purchase of any Merchandise.
6. Payments
1. Any payment obligations you incur are binding at the time of purchase. Except as otherwise set forth on the Service or as required by applicable law, all Fees are non-cancellable and non-refundable. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay at the time of purchase. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse your obligations with respect to any purchase. You agree to pay any fees or charges incurred by your Account in accordance with the fees, charges and billing terms then-currently in effect.  
2. You may be required to provide us or our Payment Processor(s) (as defined below) with a valid credit card, Digital Wallet address, bank account information, or other payment provider account (“Payment Provider”) as a condition to accessing certain Services. Your Payment Provider agreement governs your use of the designated credit card or other account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities related thereto. By providing us with your credit card number or Payment Provider account and associated payment information, you agree that Tonic is authorized to immediately invoice your Account for all fees and charges due and payable to us hereunder and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or the credit card or Payment Provider account used for payment hereunder. We reserve the right at any time to change our fees, prices, and/or billing methods, either immediately upon posting on the Service or by e-mail delivery to you.
3. Payment processing for the Service is provided by one or more third-party service providers (each, a “Payment Processor”). Tonic may add or change any Payment Processor at any time. Such services may be subject to additional terms or conditions as imposed by the applicable Payment Processor (the “Payment Processor Terms”). Tonic does not control, and makes no representations with respect to, the Payment Processor Terms. If your right to use any Payment Processor’s payment processing system is terminated you may not be able to access and use the Service or purchase any Items. You acknowledge and agree that your use of the Payment Processor’s payment processing services is subject to the Payment Processor Terms, and that Tonic shall have no liability to you in connection with any action or inaction of any Payment Processor, including without limitation any failure of any Payment Processor to fully or accurately transmit payment in connection with any purchase. 
4. Unless otherwise stated on the Service at time of purchase, the amounts paid by you for any Item do not include any Sales Tax that may be due in connection with any such Item. If Tonic determines it has a legal obligation to collect Sales Tax for any Item, Tonic shall collect such Sales Tax in addition to the amounts required under this Agreement. If any Items or payments for any Items under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Tonic, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Tonic for any liability or expense Tonic may incur in connection with such Sales Taxes. Upon Tonic’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. 
5. Any free trial or other promotion (“Promotion”) must be used within the specified time of the Promotion. At the end of the term of such Promotion, your ability to use or redeem such Promotion may expire and any further access to or use of any applicable Service may be subject to additional fees.   
6. EXCEPT AS AND SOLELY TO THE EXTENT REQUIRED BY APPLICABLE LAW, THERE ARE NO REFUNDS FOR ANY ITEMS PURCHASED ON OR THROUGH THE SERVICE.
7. Consent to Electronic Communication 
1. By entering into this Agreement or using the Service, you agree to receive communications from us, including via e-mail and/or text message and/or notifications. You agree that texts or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Service, updates concerning new and existing features on the Service, communications concerning promotions run by us or our third-party partners, and news concerning Tonic and industry developments. 
2. The Tonic mobile messages service (the “Message Service”) allows users to receive SMS/MMS mobile messages by opting-in. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by this Agreement. We do not charge for the Message Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. By enrolling in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the telephone number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include multi-factor authentication, marketing messages, advertising messages, and/or any reminders or notifications that you have enabled with respect to your use of the Service, and may be transmitted using an automatic telephone dialing system (“ATDS”) or other automated systems for the selection or dialing of telephone numbers. Your consent to receive mobile messages via an ATDS or other automated system is not required (directly or indirectly) as a condition of any use of the Service. Message frequency varies. Text the keyword STOP in reply to any message you receive through the Message Service to unsubscribe at any time. When you opt-out, you agree we may send you an opt-out confirmation message. For Message Service support or assistance, text HELP in reply to any message you receive through the Message Service or email us at the contact information provided in Section 22.  We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you change your mobile phone number, you agree to opt-out of the Message Service first.
8. Ownership. 
1. Unless otherwise indicated in writing by us, the Service and all content and other materials contained therein, including, without limitation, the Tonic logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Tonic or our affiliates, licensors or Users, as applicable.The Tonic logo and any Tonic product or service names, logos or slogans that may appear on the Service are trademarks of Tonic or our affiliates and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Tonic,” or any other name, trademark or product or service name of Tonic or our affiliates without our prior written permission. In addition, the look and feel of the Service and Content, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Tonic and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and other names or logos mentioned on the Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Tonic. 
2. Tonic may make available for purchase one or more Tokens in collaboration with a creator of art (“Artist”), using intellectual property created or licensed by such Artist (“Artist IP”). Users may be able to use the Service to mint a Token embodying such Artist IP on the Blockchain Platform. You acknowledge and agree that (i) as between you and the applicable Artist, the Artist retains all right, title and interest in and to the Artist IP, and (ii) when you mint a Token embodying Artist IP, you do not expect to receive and do not receive any rights to the Artist IP or any scripts or other intellectual property used to create such Artist IP, except as and solely to the extent set forth in the applicable NFT Terms.
9. License to Our Service and Content
1. Subject to your compliance with the Agreement, Tonic hereby grants you a limited, revocable, nonexclusive, nontransferable, non-assignable, non-sublicensable, “as-is” license to access and use the Service and Content for your own personal, non-commercial use. 
2. Subject to your compliance with the Agreement, Tonic hereby grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a reasonable number of copies of the App only on mobile devices, computers, or other compatible devices that you own or control and to run such copies of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
3. Tonic may from time-to-time change or discontinue any or all aspects or features of the Service, including by (i) altering the smart contracts which are included in the Blockchain Platform pursuant to upgrades, forks, security incident responses or chain migrations, (ii) deactivating or deleting Content that Tonic in its sole discretion determines has been abandoned; or (iii) repossessing any Tokens that Tonic in its sole discretion determines have been abandoned. In such events, you may no longer be able to access, interact with or, read the data from the Service.  You understand that the Service is evolving. As a result, we may require you to accept updates to any of the Services that you have installed on your computer or mobile device. You acknowledge and agree that we may update the Service with or without notifying you. You may need to update third-party software from time to time in order to use the Service.
4. The rights granted to you in this Agreement are subject to your ongoing compliance with the terms hereof, including without limitation the acceptable use policy set forth in Section 12, below (the “Acceptable Use Policy”). Any future release, update or other addition to the Service shall be subject to the Agreement. Tonic, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Services terminates the licenses granted by us pursuant to the Agreement.
10. User Content
1. “User Content” means any and all information and content that a user submits to, or uses with, the Site (e.g., content in a user’s Account profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy set forth below. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Tonic. Since you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Tonic is not obligated to back up or store any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
2. You hereby grant (and you represent and warrant that you have all rights necessary to grant) to Tonic a perpetual, irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, in order to provide the Service and to improve Tonic’s other products and services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3. You hereby grant Tonic a perpetual, irrevocable, fully-paid, royalty-free, transferable, worldwide, non-exclusive, freely sublicensable right and license to use without restriction all feedback or other suggestions provided by you. 
11. Third-Party Services; Third-Party Terms

The Service may contain links to third-party properties, services and applications (“Third-Party Services”). When you click on a link to a Third-Party Service, such as a bridge extension or Payment Processor, you are subject to the terms and conditions (including privacy policies) of such Third-Party Service. Such Third-Party Services are not under the control of Tonic. Tonic is not responsible for any Third-Party Service. Tonic provides links to these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or their products or services. You use all links in Third-Party Services at your own risk. When you leave our Service, our Terms and policies no longer govern. You should review all applicable agreements and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

12. Acceptable Use Policy
1. You agree not to use the Service to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable, (iii) that is harmful to minors in any way, or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
2. We reserve the right (but have no obligation) to review, refuse and/or remove any User Content in our sole discretion, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 21(o), and/or reporting you to law enforcement authorities.
3. You agree that you are solely responsible for your conduct while participating in the purchase or sale of Tokens or otherwise accessing or using the Service. You agree that you will abide by this Agreement and will not: (i) provide false or misleading information to Tonic; (ii) use or attempt to use another User’s Account or Digital Wallet without authorization from such User and Tonic; (iii) pose as another person or entity; (iv) use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the Service, or that could damage, disable, overburden or impair the functioning of the Service in any manner; (v) develop, utilize, or disseminate any software, or interact with any API in any manner, that could damage, harm, or impair the Service; (vi) reverse engineer any aspect of the Service, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Service; (vii) attempt to circumvent any content-filtering techniques we employ, or attempt to access any feature or area of the Service that you are not authorized to access; (viii) use any robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Service, extract data or otherwise interfere with or modify the rendering of Service pages or functionality; (ix) collect or harvest data from our Service that would allow you to contact individuals, companies, or other persons or entities, or use any such data to contact such entities; (x) use data collected from our Service for any direct marketing activity (including without limitation, email marketing, SMS marketing, telemarketing, and direct marketing); (xi) bypass or ignore instructions that control all automated access to the Service; (xii) use the Service for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates any applicable law or this Agreement; (xiii) use the Blockchain Platform to carry out any illegal activities in connection with or in any way related to your access to and use of the Service, including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of the Blockchain Platform, or the Service; or (xiv) engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including: (X) trading a Token at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such Token, unduly or improperly influencing the market price for such Token trading on the Service or establishing a price which does not reflect the true state of the market in such Token; (Y) for the purpose of creating or inducing a false or misleading appearance of activity in a Token or creating or inducing a false or misleading appearance with respect to the market in a Token: (A) executing or causing the execution of any transaction in a Token which involves no material change in the beneficial ownership thereof; or (B) entering any order for the purchase or sale of a Token with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such Token, has been or will be entered by or for the same or different parties; or (Z) participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of a Token.

1. Copyright

Tonic retains the absolute right to terminate access to the Service for and remove the User Content of any User who violates or infringes the rights of Tonic or of any third party. Without limiting the foregoing, if you believe that your intellectual property has been used on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; 
2. a description of the copyrighted work that you claim has been infringed; 
3. a description of the location on the Service of the material that you claim is infringing; 
4. your address, telephone number and e-mail address; 
5. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and 
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf

Contact information for Tonic’s Copyright Agent for notice of claims of copyright infringement is as follows: 37 Graham Street, Suite 121 San Francisco, CA 94129

2. Investigations

If Tonic becomes aware of any possible violations by you of this Agreement, Tonic reserves the right to investigate such violations. If, as a result of the investigation, Tonic believes that criminal activity may have occurred, Tonic reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Tonic is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Service, including your Content, in Tonic’s possession in connection with your use of the Service, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce this Agreement, (iii) respond to any claims that your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Tonic, its Users, or the public, and all law enforcement or other government officials, as Tonic in its sole discretion believes to be necessary or appropriate. By agreeing to this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning your use of the Service, including without limitation text, voice, or video communications. 

3. Release

You hereby release and forever discharge Tonic and our officers, employees, agents, successors, and assigns (the “Tonic Entities”) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any purchases of any Items or any interactions with, or act or omission of, other Users of the Service or any Third-Party Services). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

4. Assumption of Risk Related To Blockchain Technology

You acknowledge and agree that:

1. The prices of digital assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the Tokens, which may also be subject to significant price volatility. We cannot and do not guarantee that any Tokens will not lose value.
2. You are solely responsible for determining what, if any, taxes apply to your transactions involving Tokens. Neither Tonic nor any other Tonic Entity is responsible for determining the taxes that may apply to transactions involving Tokens.
3. Tokens exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such Tokens. 
4. There are risks associated with using digital currency and digital assets, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, the risk that third parties may obtain unauthorized access to your information, and the risk of purchasing (i) counterfeit or mislabeled assets, (ii) assets that are vulnerable to metadata decay, (iii) assets on smart contracts with bugs, and (iv) assets that may become untransferable. 
5. Upgrades to the Blockchain Platform, a hard fork in the Blockchain Platform, a failure or cessation of the Blockchain Platform, or a change in how transactions are confirmed on the Blockchain Platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation your transactions involving Tokens purchased from Tonic.
6. The legal and regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is evolving, and new regulations or policies may materially adversely affect the development of the Service and the utility of Tokens.
7. Tonic reserves the right to hide collections, contracts, and assets that Tonic suspects or believes may violate this Agreement. Tokens you purchase may become inaccessible on the Service. Under no circumstances shall the inability to access or view your assets on the Service serve as grounds for a claim against Tonic.
5. Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Tonic and the Tonic Entities from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement, and costs of or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to this Agreement or your use of the Service, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Service, Content or Tokens, including, without limitation, any act or omission involving any third party in connection with the listing, buying, selling, or trading of any Items hereunder; (b) any feedback you provide; (c) your violation of this Agreement; (d) your violation of the rights of any third party, including another User; (e) any breach or non-performance of any covenant or agreement made by you; (f) your listing, buying, selling, or trading of any Items; or (g) any Token Access Services (including the furnishing, or any failure to furnish, or any acts or omissions of or attributable to you or any third party in respect of the same). You agree to promptly notify Tonic of any third-party Claims and cooperate with Tonic Entities in defending such Claims. You further agree that Tonic Entities shall have control of the defense or settlement of any third-party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND TONIC.

6. Disclaimers

THE SERVICE, CONTENT CONTAINED THEREIN, AND ITEMS LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TONIC (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE AND/OR ITEMS: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. TONIC DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICE OR ANY CONTENT CONTAINED THEREIN. TONIC DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE TONIC ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, TONIC CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY ITEMS LISTED ON OUR SERVICE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.

WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICE. WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF TOKENS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR TOKENS.

TOKENS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE BLOCKCHAIN PLATFORM. WE DO NOT GUARANTEE THAT TONIC OR ANY TONIC ENTITY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY TOKENS. WE CANNOT AND DO NOT GUARANTEE THAT ANY TOKEN WILL HAVE OR RETAIN ANY INHERENT VALUE, OR THAT YOU WILL BE ABLE TO SELL OR RESELL ANY TOKEN PURCHASED THROUGH THE SERVICE.

Tonic is not responsible for any losses or harms sustained by you due to vulnerability or any kind of failure, abnormal behavior of software (e.g., smart contract), blockchains, or any other features of or inherent to the Tokens. Tonic is not responsible for casualties due to developers’ or representatives’ delay or failure to report any issues with any blockchain supporting Tokens, including without limitation forks, technical node issues, or any other issues that result in losses of any sort.

Nothing in this Agreement shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded under the laws applicable to your jurisdiction. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

7. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL TONIC BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, THE SERVICE, ANY ITEMS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF TONIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS UNDERTAKEN BY YOU AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF TONIC ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, YOUR ACCESS TO AND USE OF THE SERVICE, CONTENT (INCLUDING YOUR CONTENT), OR ANY ITEMS MINTED, PURCHASED, OR SOLD THROUGH THE SERVICE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT RETAINED BY TONIC IN THE TRANSACTION OR INCIDENT THAT IS THE SUBJECT OF THE CLAIM. 

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

8. DISPUTE RESOLUTION. Please read carefully the following arbitration agreement (“Arbitration Agreement”). It requires you to arbitrate disputes with Tonic and limits the manner in which you can seek relief from us.
1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Tonic agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any Items sold or distributed through the Service, or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Tonic may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Tonic may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of this Agreement.  
2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Tonic. If that occurs, Tonic is committed to working with you to reach a reasonable resolution. You and Tonic agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Tonic therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Tonic that you intend to initiate an Informal Dispute Resolution Conference should be sent by email or regular mail to the contact information set forth in Section 22. The Notice must include: (1) your name, telephone number, mailing address, email address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section. 

3. Waiver of Jury Trial. YOU AND TONIC HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.You and Tonic are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.  
4. Waiver of Class and Other Non-Individualized Relief. YOU AND TONIC AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 20(i), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 20(i) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection 20(d) are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Tonic agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Tonic from participating in a class-wide settlement of claims.
5. Rules and Forum. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Tonic agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. 

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.  

Unless you and Tonic otherwise agree, or the Batch Arbitration process discussed in subsection 20(i) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.  

You and Tonic agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 20(i) is triggered, the AAA will appoint the arbitrator for each batch.
7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to subsection 20(d), including any claim that all or part of subsection 20(d) is unenforceable, illegal, void or voidable, or that such subsection 20(d) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Tonic need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Tonic agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Tonic by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Tonic.

You and Tonic agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the contact information in Section 22 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
11. Invalidity, Expiration. Except as provided in subsection 20(d), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Tonic as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
12. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Tonic makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Tonic at the contact information set forth in Section 22, your continued use of the Service, including the acceptance of Items offered on or through the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any Items sold or distributed through the Service, or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Tonic will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
9. General 
1. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: 
• You acknowledge and agree that (i) the Agreement is concluded between you and Tonic only, and not Apple, and (ii) Tonic, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. 
• You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. 
• In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Tonic and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Tonic. 
• You and Tonic acknowledge that, as between Tonic and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• You and Tonic acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Tonic and Apple, Tonic, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. 
• You and Tonic acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. 
• Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
2. The communications between you and Tonic may take place via electronic means, whether you visit the Service, download the App, send Tonic e-mails, or whether Tonic posts notices on the Service or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
3. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
4. Tonic shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, pandemics, epidemics, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. 
5. If you have any questions, complaints or claims with respect to the Service, please contact us at: the contact information set forth in Section 22. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
6. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and we agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
7. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTIO N.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.  
8. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.  
9. Where Tonic requires that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to us at the contact information set forth in Section 22. Such notice shall be deemed given when received by Tonic by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
10. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
12. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Service, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by us are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer our products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
14. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. 
15. We reserve the right in our sole discretion to modify, suspend, or discontinue the Service, or any features or parts thereof, whether temporarily or permanently, at any time with or without notice to you in our sole discretion. Notwithstanding anything contained in this Agreement, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Service at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law. Upon termination of your rights under this Agreement, your Account and right to access and use the Service will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Tonic will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your Account or deletion of your User Content. All sections intended by their nature to survive will survive the termination of this Agreement. Your relationship to Tonic is that of an independent contractor, and neither party is an agent or partner of the other. 
10. Contact Information

Tonic Labs, Inc.

support@tonic.xyz

37 Graham St. Suite 121

San Francisco, CA 94129